U.S. chemical manufacturers Honeywell International and Chemours, along with the Natural Resources Defense Council, in early March 2019 once again asked a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit to maintain the Obama-era authority of the U.S. Environmental Protection Agency (EPA) to ban high-GWP HFCs in certain applications.
The action was first reported in E&E News.
In August 2017, the same court ruled in the case Mexichem Fluor, Inc. v. EPA that the EPA cannot require companies to replace HFCs with low-GWP substances under the agency’s 2015 SNAP (Significant New Alternatives Policy) Rule 20. The Court of Appeals declined to reverse its panel’s ruling on appeal, and the U.S. Supreme Court later declined to hear the case.
The new action revisits the 2017 ruling and urges that it not be applied to EPA SNAP Rule 21, issued in 2016.
Under EPA’s SNAP Rule 20, HFCs could not be used in a variety of retail food refrigeration applications, motor vehicle air conditioning, certain foam-blowing uses and aerosol propellants after specified dates. Rule 21 extended those bans to other applications, including cold-storage warehouses, certain chillers, household refrigerators and freezers, retail food processing and dispensing equipment, and other foam-blowing uses.
Last year, California passed legislation called the California Cooling Act that adopted EPA SNAP Rules 20 and 21 by reference, with the exception of motor vehicle air-conditioning. Other states, including New York, Maryland and Connecticut, announced plans to follow California’s example regarding HFC bans.
The 2017 ruling by the Court of Appeals, written by Brett Kavanaugh (now on the U.S. Supreme Court), said the EPA’s authority only pertained to banning ozone-depleting substances (ODS) and could not be applied to ODS substitutes like HFCs, even though HFCs were later added to the list of unacceptable substitutes.
According to the E&E News report, Thomas Lorenzen, representing the U.S. manufacturers, argued last week that the original ruling did not account for a provision in the 1994 SNAP regulation stating that “no person may use a substitute after the effective date of any rulemaking adding such substitute to the list of unacceptable substitutes.” He added that the 60-day limit to bring a lawsuit challenging that provision expired in 1994.
But Department of Justice attorney Ben Carlisle, representing the EPA, argued that the facts in the lawsuit over the 2016 rule are “materially identical” to those in the case concerning the invalidated 2015 rule, according to E&E News.